Welsh v. Lamb County ( 2023 )

Case: 22-10124 Document: 00516780964 Page: 1 Date Filed: 06/09/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
June 9, 2023
No. 22-10124 Lyle W. Cayce
____________ Clerk
Lonnie Kade Welsh,
Plaintiff—Appellant,
versus
Lamb County, in its Individual Capacity; Sheriff Gary Maddox,
in his Individual Capacity; Administrator Misty Diaz, Individual
Capacity and Official Capacity as Policy Maker for Lamb County; Chief
Deputy Craig Thompson, in his Individual Capacity and Official
Capacity as policy maker of Lamb County; Deputy Jonathan
Martinez; Deputy Denis NLN, in her Individual Capacity; Scott
Say, in his Individual Capacity, 154th Lamb County District Attorney;
Logan Knox,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CV-24
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10124 Document: 00516780964 Page: 2 Date Filed: 06/09/2023
No. 22-10124
Lonnie Kade Welsh, proceeding pro se, appeals the dismissal of his
civil-rights claims against Lamb County, Texas and multiple officials at the
Lamb County Jail, stemming from Welsh’s detention at the Jail from
November 2017 to June 2018. The defendant-appellees have not made an
appearance in this appeal.
For the following reasons, we AFFIRM in part, DISMISS in part,
and REVERSE and REMAND in part.
I.
Welsh was charged with tampering with or fabricating physical
evidence and was detained in the Lamb County Jail from November 28, 2017
to June 20, 2018 while awaiting trial. On March 4, 2020, Welsh filed a
complaint in federal court under 42 U.S.C. § 1983, seeking money damages
based on twelve counts for relief, alleging various constitutional violations
during his period of pretrial detention at the Jail. Among other claims, Welsh
alleged that he was (i) deprived of due process based on the conditions in a
holding cell where he was confined for three days, and was (ii) denied access
to a law library.
To assist with preliminary screening under 28 U.S.C. § 1915, the
magistrate judge had Welsh fill out a questionnaire to further develop his
factual allegations. Having reviewed the complaint and Welsh’s
questionnaire responses, the magistrate judge prepared a thirty-seven-page
Report and Recommendation (“R&R”) recommending dismissal of most of
his claims under 28 U.S.C. § 1915(e)(2)(B). Welsh objected to the R&R.
The district court adopted the R&R in part, dismissing most of Welsh’s
claims, and then entered final judgment as to the dismissed claims under
Federal Rule of Civil Procedure 54(b). Welsh timely appealed.
2
Case: 22-10124 Document: 00516780964 Page: 3 Date Filed: 06/09/2023
No. 22-10124
II.
We have jurisdiction to hear Welsh’s appeal despite the ongoing
proceedings in the district court, because the district court properly entered
a “nonfinal judgment[] certified as final under” Rule 54(b). Briargrove
Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 538 (5th Cir.
1999).
While Welsh also purports to appeal the denial of his motion to amend
his complaint to allege antitrust violations, this order was not included in the
Rule 54(b) judgment, and no other basis for jurisdiction exists. See id. We
therefore dismiss this portion of Welsh’s appeal.
III.
As to the claims over which we have jurisdiction, we review a dismissal
under 28 U.S.C. § 1915(e)(2)(B) de novo, applying the same standard used to
review a dismissal under Rule 12(b)(6). Alderson v. Concordia Par. Corr.
Facility, 848 F.3d 415, 419 (5th Cir. 2017) (per curiam). Accordingly, “we
review the district court’s dismissal ‘taking the facts alleged in the complaint
as true and viewing them in the light most favorable to’ the plaintiff.” Id.(quoting Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010)). We construe
pro se briefs liberally, but “conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to state a claim for
relief.” Coleman v. Lincoln Par. Det. Ctr., 858 F.3d 307, 309 (5th Cir. 2017)
(per curiam) (internal quotation marks and citation omitted).
Welsh contends that the district court erred by dismissing his claims
alleging: (1) a substantive due-process violation based on the conditions in a
holding cell where he was confined for three days; (2) due-process violations
based on Welsh’s claim that his mental illness precluded the finding that he
3
Case: 22-10124 Document: 00516780964 Page: 4 Date Filed: 06/09/2023
No. 22-10124
committed a disciplinary offense and that he did not receive all process he
was due; (3) violations of his First, Fourth, and Fourteenth Amendment
rights based on the denial of telephone privileges and the resulting inability
to post bail; (4) violations of the Fourth Amendment when his legal papers
were confiscated; (5) constitutional violations based on the denial of access
to a law library in connection with his criminal charges and two civil lawsuits;
and (6) violations of the First and Fourteenth Amendments based on
exorbitant pricing for phone calls and commissary items.1
Having considered Welsh’s arguments and reviewed the record, we
find no error in the district court’s dismissal of claims (2), (3), (4), and (6).
We affirm the dismissal of those claims for the reasons given by the district
court.
This leaves Welsh’s claims arising out of (1) the conditions in his
holding cell, and (2) the denial of access to a law library. These two claims
require further discussion, and we address each in turn.
A.
The district court dismissed Welsh’s substantive due-process claim
arising out of the conditions in his holding cell on the basis that the alleged
deprivations were de minimis. The court noted that Welsh alleged that he had
been denied meal service,2 hygiene items, recreation, and bedding over the
course of his three days in the holding cell, and that under relevant case law,
_____________________
1
Welsh does not brief the district court’s dismissal of his claim arising out of the
denial of access to books and a dictionary, or his claim under the Privileges and Immunities
Clause. He has therefore abandoned these claims. See Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
2
Specifically, Welsh alleged that he was fed a “food loaf,” which is “several items
of food compacted together.”
4
Case: 22-10124 Document: 00516780964 Page: 5 Date Filed: 06/09/2023
No. 22-10124
including this court’s decision in Hamilton v. Lyons, 74 F.3d 99 (5th Cir.
1996), these impositions were “relatively minor discomforts” that were not
of constitutional dimension.
Looking to the allegations as summarized by the district court, the
impositions on Welsh in the holding cell may indeed appear de minimis. The
problem is that Welsh’s most troubling allegation was not mentioned by the
district court. Specifically, Welsh alleges that, during his three days in the
holding cell, “the defendants made [him] drink from the toilet for substance
to satisfy his thirst.” To support this allegation, Welsh attaches a transcript
from a pretrial hearing in his criminal case, held a few months after the
alleged deprivation, where he told the state trial judge that he “had to drink
out of the toilet because they wouldn’t bring [him] water.”
Welsh did not include this allegation in his initial complaint or in his
responses to the magistrate judge’s questionnaire. He alleged this fact and
attached the supporting transcript for the first time in his objections to the
magistrate judge’s R&R. But this is not fatal to his claim. We have explained
that a “district court may construe an issue raised for the first time in an
objection to a magistrate judge’s report and recommendation as a motion to
amend [the] complaint.” United States v. Riascos, 76 F.3d 93, 94 (5th Cir.
1996) (per curiam). We review the denial of such a motion for abuse of
discretion. Id.Here, in adopting the magistrate judge’s R&R as to this claim, the
district court did not mention Welsh’s added allegation that he was forced to
drink from the toilet.3 We therefore construe the district court’s order as
having denied the motion to amend. See Moler v. Wells, 18 F.4th 162, 167-68
_____________________
3
The court addressed and ruled on other requests by Welsh to amend his
pleadings, but none relates to this factual allegation.
5
Case: 22-10124 Document: 00516780964 Page: 6 Date Filed: 06/09/2023
No. 22-10124
(5th Cir. 2021) (noting that, when the district court “did not state whether it
construed” plaintiff’s objections to a magistrate judge’s R&R as a motion to
amend his complaint, it “implicit[ly] deni[ed]” such a motion); Place v.
Thomas, 61 F. App’x 120, 2003 WL 342287, at *1 (5th Cir. 2003) (same).
Two key observations inform our assessment of whether this denial
was an abuse of discretion. First, Welsh is a pro se litigant whose pleadings
must be liberally construed. Riascos, 76 F.3d at 94 (citation omitted).
Second, and more significantly, Welsh’s added allegation substantially
refutes the magistrate judge’s conclusion, adopted by the district court, that
the impositions on his liberty in the holding cell were de minimis. Accepting
Welsh’s factual allegations as true, as we must, we cannot say that the denial
of drinking water for several days, requiring Welsh to drink out of the toilet,4
is a de minimis imposition such that his constitutional right to be free from
punishment as a pretrial detainee was not implicated. See Bell v. Wolfish, 441
U.S. 520, 535-40 (1979). Being forced to satisfy one’s thirst by drinking toilet
water is more than a “minor discomfort[].” Notably, Hamilton, which the
district court relied on, did not involve an allegation of this magnitude. See
Hamilton, 74 F.3d at 106 (finding de minimis impositions where the detainee
alleged that “he was denied visitation, telephone access, recreation, mail,
legal materials, sheets, and showers for a three-day period”).
Because Welsh was pro se, and because his added factual allegation
defeats the sole basis for the dismissal of his claim, we conclude that the
_____________________
4
Welsh also, and correspondingly, alleged that he was denied running water in the
holding cell. This suggests that Welsh could not, for example, drink out of the sink. That
said, we note that the magistrate judge observed video surveillance from Welsh’s first day
in the holding cell, showing Welsh “pacing in a small cell that has a bed, mattress, pillow,
toilet, and sink (with running water).” While this finding tends to undermine Welsh’s
factual allegation, it remains possible that he had running water on the first day, but not
thereafter. In any case, we cannot resolve the fact question against Welsh at this stage.
6
Case: 22-10124 Document: 00516780964 Page: 7 Date Filed: 06/09/2023
No. 22-10124
district court abused its discretion in failing to consider the added allegation
in ruling on Welsh’s objections. See Riascos, 76 F.3d at 94-95 (holding that,
where the “district court made no specific reference” to a pro se petitioner’s
meritorious allegation raised for the first time in his objection to an R&R and
adopted the R&R’s recommended dismissal of the relevant claim, the court
abused its discretion in failing to construe the objection as a motion to
amend); Moler v. Baty, No. 19-31015, 2022 WL 4244279, at *2 (5th Cir. Sept.
15, 2022) (per curiam) (summary calendar) (“Because [plaintiff]’s objections
to the magistrate judge’s report and his motion to amend his complaint . . .
raised [an issue that] undermines the basis for dismissing his due process
claim, that claim should not have been dismissed on that basis.”).
Because the court erred in failing to consider Welsh’s allegation that
he was forced for several days to drink from the toilet, we reverse the
dismissal of his due-process claim arising out of the conditions in his holding
cell. We remand with instructions that the full scope of Welsh’s factual
allegations be considered under the law governing pretrial detainees’ due-
process rights.
B.
The district court dismissed Welsh’s claim based on the denial of law-
library access in relevant part5 on the basis that Welsh had no right to a law
library because he waived his right to counsel in the state criminal proceeding
when he decided to proceed pro se. Welsh contends that his claim should
survive because his waiver of counsel’s assistance was not knowing and
voluntary.
_____________________
5
Our discussion of Welsh’s law-library claim here is confined to the claim as it
pertains to his state criminal proceeding, not his federal civil lawsuits. We affirm the
dismissal of the claim vis-à-vis his civil suits for the reasons given by the district court.
7
Case: 22-10124 Document: 00516780964 Page: 8 Date Filed: 06/09/2023
No. 22-10124
1.
Welsh submitted some relevant excerpts from his state-court
proceedings, including two pretrial hearings before the state trial judge. At a
hearing in March 2018, the judge asked if Welsh was “asking the Court to
waive [his] right to counsel so that [he] can represent [himself],” to which
Welsh responded, “[t]hat’s correct, Your Honor.” The trial judge then
proceeded to warn Welsh of the various risks of self-representation. Most
notably, the judge told Welsh, “[i]f you are incarcerated at any point from
now until the beginning of the trial, your ability to adequately prepare for your
trial could be significantly hindered.” Asked if he understood that, Welsh
responded, “I do, Your Honor.” The judge told Welsh that he believed that
it was “a mistake” for Welsh to proceed pro se, and Welsh said he
understood. The judge later reiterated, “I do want you to know I think this
is a very grave mistake on your part.” Welsh responded, “Thank you.”
The judge ruled that he would allow Welsh to proceed pro se. But as
the discussion continued, Welsh became more hesitant to do so. The trial
judge asked if Welsh wanted “some additional time to consider” whether he
wanted to represent himself. Welsh said yes. The trial judge then stated that
he withdrew his ruling on Welsh’s request to self-represent and that the court
would set a future date, before trial, for Welsh to re-urge his request. The
judge also noted that at that point in time, Welsh would still be represented
by his appointed attorney.
Around two months later, the trial judge conducted another hearing.
Although Welsh does not provide any intervening hearing transcripts or
evidence of other developments, it is undisputed that by the time of this
hearing, Welsh was representing himself. During that hearing, Welsh sought
to continue his trial and “object[ed] to not being able to go to the law library
based off [his] Sixth Amendment right to effective assistance of counsel and
8
Case: 22-10124 Document: 00516780964 Page: 9 Date Filed: 06/09/2023
No. 22-10124
the minimum of due process.” He explained that he had been allowed to go
to the law library for only “two hours for the entire time [he had] been
allowed access.” He said that he understood “the access to the law library
[to be] a constitutional right.” In response to Welsh’s assertions, the
prosecutor said that not having access to legal resources was “part of the risk
that [the court] warned him of when he decided to” represent himself. The
judge denied Welsh’s motion to continue the trial, and the law library was
not discussed further.
Welsh ultimately defended himself pro se at trial and was convicted
and sentenced to eleven years’ imprisonment. See Welsh v. State, 570 S.W.3d
963, 964–65 (Tex. App.—Amarillo 2019). His conviction was later
overturned for insufficient evidence. Id. at 965-69.
Now, in this § 1983 case, Welsh alleges that he “did not want an
attorney because [he] knew [he] either had to have an attorney or be allowed
the law library when [he] was at the jail before.” Welsh submitted an affidavit
stating that he was “admonished that attorney Jim Shaw would be [his] stand
by counsel,” but about two weeks after that admonishment, Shaw stopped
answering his letters. Welsh further attests that he “was under the
understanding that [he] was going to have access to the law library in
Lubbock,” and that he “would have never ever, ever . . . represented
[him]self if [he] knew [he] wouldn’t have any law library access or stand by
counsel.”
2.
We have held, based on the Supreme Court’s decision in Bounds v.
Smith, 430 U.S. 817 (1977), that “a prisoner who knowingly and voluntarily
waives appointed representation by counsel in a criminal proceeding is not
9
Case: 22-10124 Document: 00516780964 Page: 10 Date Filed: 06/09/2023
No. 22-10124
entitled to access to a law library.” Degrate v. Godwin, 84 F.3d 768, 769 (5th
Cir. 1996) (per curiam) (citations omitted).6
Welsh asserts that the Degrate rule should not bar his access-to-courts
claim because his waiver of court-appointed counsel was not knowing or
voluntary. We disagree. To ensure that a defendant’s waiver of counsel is
“valid,” United States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006) (citation
omitted), the trial judge must warn a defendant of “the dangers and
disadvantages of self-representation,” Faretta v. California, 422 U.S. 806,
835 (1975). Doing so ensures that that defendant “knows what he is doing
and [that] his choice is made with eyes open.” United States v. Cano, 519
F.3d 512, 516 (5th Cir. 2008) (internal quotation marks and citation omitted).
But as this court has explained, there is “no sacrosanct litany for
warning defendants against waiving the right to counsel.” United States v.
Jones, 421 F.3d 359, 363 (5th Cir. 2005) (quoting United States v. Davis, 269
F.3d 514, 519 (5th Cir. 2001)). Instead,
[i]n determining whether a defendant has effectively waived
the right to counsel, the district court must consider various
factors, including the defendant’s age, education, background,
experience, and conduct. The court must ensure that the
waiver is not the result of coercion or mistreatment, and must
be satisfied that the accused understands the nature of the
charges, the consequences of the proceedings, and the
practicality of waiving the right to counsel.
United States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003) (citations omitted).
_____________________
6
Other circuits have held the same. See United States v. Chatman, 584 F.2d 1358,
1359 (4th Cir. 1978); United States v. Smith, 907 F.2d 42, 45 (6th Cir. 1990); United States
ex rel. George v. Lane, 718 F.2d 226, 231 (7th Cir. 1983); United States v. Wilson, 690 F.2d
1267, 1271 (9th Cir. 1982); see also Kelsey v. Minnesota, 622 F.2d 956, 958 (8th Cir. 1980);
Love v. Summit Cnty., 776 F.2d 908, 912-14 (10th Cir. 1985).
10
Case: 22-10124 Document: 00516780964 Page: 11 Date Filed: 06/09/2023
No. 22-10124
Here, the state trial judge advised Welsh emphatically and at length
about the dangers of self-representation. Indeed, the judge warned him
specifically that if he were incarcerated at any point, his “ability to adequately
prepare for [his] trial could be significantly hindered.” The judge also told
him that if he proceeded pro se, he would not be entitled to the assistance of
standby counsel. Welsh stated on the record that he understood these and
other warnings.7 We see no reason to conclude that the trial judge’s
admonishments in this case were somehow deficient such that Welsh’s
waiver of counsel was constitutionally compromised.8
Welsh’s argument is essentially that he thought he would have access
to the law library, and it turned out that he was wrong. But Welsh’s
misunderstanding in this regard does not render his waiver of counsel
unknowing or involuntary. This is particularly so in light of the judge’s
extensive warnings about the risks of proceeding pro se—including that
incarceration may hinder his ability to prepare his case—as well as the
judge’s explicit advice that waiving counsel would be “a very grave mistake.”
Welsh’s decision to make that mistake does not save his § 1983 claim. See
_____________________
7
Although Welsh initially asked for more time to decide whether to waive counsel,
it is undisputed that he ultimately decided to do so.
8
To the extent Welsh implicitly argues that, for his waiver to be valid, the judge
was required to warn him specifically that he would not be entitled to law-library access, he
is wrong. Neither Degrate nor Faretta imposes such a requirement. Degrate asks only if
court-appointed counsel was validly waived, and Faretta cases—which govern the validity
of such a waiver—generally reject any requirement for specific admonishments. See Davis,
269 F.3d at 519 (“[W]e require no sacrosanct litany for warning defendants against waiving
the right to counsel.”); Landry v. Cain, 445 F. App’x 817, 823 (5th Cir. 2011) (explaining
that “[t]he Supreme Court has not prescribed any formula or script to be read to a
defendant who states that he elects to proceed without counsel,” and that the “district
court must exercise its discretion in determining the precise nature of the warning”
(cleaned up) (citations omitted)); Lopez v. Thompson, 202 F.3d 1110, 1119 (9th Cir. 2000)
(“Although Faretta announced a constitutional right to self-representation, it mandated no
specific litany or formula to ensure that waivers of counsel are knowing and intelligent.”).
11
Case: 22-10124 Document: 00516780964 Page: 12 Date Filed: 06/09/2023
No. 22-10124
United States v. Smith, 907 F.2d 42, 45 (6th Cir. 1990) (concluding that “an
assessment of the [defendant]’s ability to obtain technical legal research was
not relevant in this case in order for the court to determine that the
[defendant]’s waiver of counsel was competent,” and that, “by knowingly
and intelligently waiving his right to counsel, the [defendant] also
relinquished his access to a law library”).
In sum, Degrate instructs that a detainee who waives court-appointed
counsel does not have a constitutional right to law-library access. Welsh
knowingly and voluntary dismissed his court-appointed lawyer and decided
to proceed to trial pro se. Under Degrate, therefore, the district court’s
dismissal of Welsh’s access-to-courts claim was appropriate. See Degrate, 84
F.3d at 769 (“[H]aving rejected the assistance of court-appointed counsel,
Degrate had no constitutional right to access a law library in preparing the pro
se defense of his criminal trial.”); United States v. Whittington, 269 F. App’x
388, 406 (5th Cir. 2008) (per curiam) (“During the period when [the
defendant] did represent himself, both before trial and after, having fired his
court-appointed attorney, he had no right to law library access.”); Danmola
v. United States, 736 F. App’x 514, 515 (5th Cir. 2018) (per curiam)
(“Because [the defendant] had refused the offer of court-appointed
representation, he had no constitutional right of access to a law library in
order to prepare for his pro se defense at trial.”).
IV.
For the foregoing reasons, we REVERSE the district court’s
dismissal of Welsh’s substantive due-process claim arising out of the
conditions in his holding cell and REMAND for further proceedings
consistent with this opinion. We DISMISS for lack of jurisdiction Welsh’s
12
Case: 22-10124 Document: 00516780964 Page: 13 Date Filed: 06/09/2023
No. 22-10124
appeal of the district court’s denial of leave to amend his complaint to add an
antitrust claim.
We AFFIRM the judgment of the district court in all other respects.
13